Citation Nr: 1302766
Decision Date: 01/25/13 Archive Date: 01/31/13
DOCKET NO. 09-03 161 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina
THE ISSUES
1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a right shoulder disability, to include as a qualifying chronic disability under 38 C.F.R. § 3.317.
2. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for headaches, to include as a qualifying chronic disability under 38 C.F.R. § 3.317.
3. Entitlement to service connection for a right wrist disability, to include as a qualifying chronic disability under 38 C.F.R. § 3.317.
4. Entitlement to an increased evaluation for residuals of left wrist strain, currently rated at 10 percent.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
M. Taylor, Counsel
INTRODUCTION
The Veteran served on active duty from August 1989 to June 1996.
This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).
Although the Veteran's DD Form 214 reflects separation from active duty in February 1996, a January 1995 letter from the Department of Defense reflects an Expiration of Term of Service (ETS) date of June 15, 1996, which is consistent with the Veteran's report in the January 2006 VA Form 21-526.
The Veteran served in Southwest Asia from August 27, 1991 to November 26, 1991, and asserts service connection for the disabilities claimed on appeal, to include as qualifying chronic disabilities under 38 C.F.R. § 3.317. The issues have been recharacterized to comport with the evidence of record.
The December 2007 rating decision reflects that an increased rating for service-connected residuals of left wrist strain was denied. The Veteran filed a notice of disagreement in October 2008, noting symptoms of pain and weakness in both the right wrist and left wrist. Although the RO considered the October 2008 notice of disagreement as a new claim with respect to the evaluation of left wrist residuals, the Board construes the October 2008 notice of disagreement as disagreement with the denial of an increased rating for left wrist sprain residuals. See Ortiz v. Shinseki, 23 Vet. App. 353, 361 (2010) (indicating that "mere dissatisfaction is the essence of an NOD"). The filing of a notice of disagreement confers jurisdiction on the Board, and the next step is for the AOJ to issue a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997).
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required.
REMAND
The Veteran seeks to reopen the claims for service connection for a right shoulder disability and headaches, and asserts entitlement to service connection for a right wrist disability, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. In a January 2006 statement, he reported having been exposed to environmental hazards, such as oil fires, during service in Kuwait.
In a new and material evidence claim, the VCAA notice must include the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish the underlying claim for the benefits sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). Although the December 2008 statement of the case notes that VCAA notice was provided in March 2007, the Veteran has not been provided with content-complying VCAA notice with respect to the issue of whether new and material evidence has been presented to reopen claims of entitlement to service connection for a right shoulder disability and headaches. The procedural defect must be corrected.
With respect to service connection for a right wrist disability, in January 2008 and October 2008, the Veteran reported having had cortisone shots in the wrists during service, from 1990 to 1993, at the Army Hospital in Heidelberg, Germany, due to onset of painful, swollen knots in the wrists, with continuing symptoms to the present. Although the service treatment records were obtained from the Records Management Center (RMC) and associated with the claims file in February 2006, right wrist treatment is not documented in the service treatment records. However, service connection for left wrist strain residuals has been established based on a February 1993 service treatment record noting left wrist treatment in the field two weeks earlier; an assessment of overuse syndrome; and referral for further evaluation. The record does not show that an attempt has been made to obtain the referenced service treatment records from Heidelberg Army Hospital with respect to the right wrist.
Private treatment records, dated in September 2008, note a long-standing history of distal wrist pain. The records reflect that the Veteran underwent arthroscopic right wrist debridement and resection of the distal ulna. Prior to considering the claim of service connection for a right wrist disability, to include as secondary to a service-connected right ring and small finger lacerations and repair of the flexor digitorium profundus and/or residuals of left wrist strain, a VA examination is needed. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).
In a rating decision in December 2007, the RO denied a rating in excess of 10 percent for residuals of left wrist sprain. In October 2008, the Veteran filed a notice of disagreement with the denial. When there has been an adjudication by the RO and a timely notice of disagreement has been filed, a statement of the case addressing the issue must be furnished to the Veteran. Manlincon v. West, 12 Vet. App. 238 (1999).
Accordingly, the case is REMANDED for the following action:
1. Provide the Veteran with content-compliant notice per Kent v. Nicholson, 20 Vet. App. 1 (2006) (the elements of a new and material evidence claim) on the application to reopen the claims of service connection for a right shoulder disability and headaches.
2. Notify the Veteran that he may submit lay evidence of any continuity of symptoms of the conditions claimed on appeal, to include statements from others familiar with the Veteran's complaints of symptoms referable to the claimed disorders of the right wrist, right shoulder and headaches, during and/or since service.
3. Attempt to obtain the Veteran's treatment records from the Heidelberg Army Hospital in Germany for the period 1990 to 1993from alternate sources. Follow the procedures of 38 C.F.R. § 3.159(c)(2).
4. Notify the Veteran of the results of the record requests. If records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e).
5. Schedule the Veteran for a VA orthopedic examination by an appropriate medical professional. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. All required testing must be accomplished.
The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that a right wrist disability, to include ulnar variance with degenerative changes at the distal radioulnar joint is related to service or caused or aggravated by service-connected right ring and small finger lacerations and repair of flexor digitorium profundus.
The examiner is advised that the term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to the service-connected disability as contrasted to a temporary worsening of symptoms.
The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).
6. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits remain denied issue an appropriate supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond before returning the case to the Board.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
_________________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).